Article

Judicial Independence as a Constitutional Virtue

Roderick A. Macdonald and Hoi Kong

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0041

Series: Oxford Handbooks in Law

Judicial Independence as a Constitutional Virtue

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This article presents a comparative approach to judicial independence grounded in three interrelated claims: that judicial independence is a particular kind of normative concept that is best understood through a particular normative theory; that this concept is made effective through institutional design choices; and that the socio-political features of specific contexts will dictate which design choices are normatively appropriate or politically possible. The article is organized as follows. Section II elaborate upon the first of these claims, arguing that judicial independence is both an essentially contested concept and a solution concept. Section III develops the second and third of these central claims. It presents frameworks for analyzing the design choices that polities make when implementing and sustaining institutions and procedures that are meant to support judicial independence.

Keywords: judicial independence; institutional design; constitutional theory; normative theory

Article.  16581 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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